Citation Nr: 0939015
Decision Date: 10/15/09 Archive Date: 10/28/09
DOCKET NO. 06-12 546 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a right ear hearing
loss.
2. Entitlement to service connection for migraine headaches.
3. Entitlement to an initial compensable disability rating
for a left ear hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Clifford R. Olson, Counsel
INTRODUCTION
The Veteran served on active duty from April 1970 to January
1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2004 decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama.
In February 2008, a hearing was held before a RO Decision
Review Officer (DRO). The transcript of the hearing is in
the claims folder.
The issue of entitlement to service connection for a right
ear hearing loss is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran does not have migraine headaches as the
result of disease or injury during his active service.
2. Migraine headaches were not manifested during the first
year after the Veteran completed his active service.
3. Migraine headaches are not etiologically related to a
service-connected disease or injury.
4. The service-connected left ear hearing loss is manifested
by a pure tone threshold average of 43.75 decibels with
discrimination ability of 88 percent (numeric designation
II).
CONCLUSIONS OF LAW
1. Migraine headaches were not incurred in or aggravated by
active military service, may not be presumed to have been
incurred in service, and are not proximately due to or the
result of a service-connected disease or injury. 38 U.S.C.A.
§§ 101(16), 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309, 3.310(a) (2009).
2. The criteria for an initial compensable disability rating
for a left ear hearing loss have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, § 4.85, Code
6100 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
Duty to Notify
An October 2003 letter from the RO provided the Veteran with
an explanation of the type of evidence necessary to
substantiate his claims for service connection, as well as an
explanation of what evidence was to be provided by him and
what evidence the VA would attempt to obtain on his behalf.
The initial notice letter was provided before the
adjudication of his claim in June 2004. That decision
granted service connection for a left ear hearing loss with a
noncompensable rating. The Veteran had not been provided
with the notice regarding potential ratings and effective
dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
However, he was not prejudiced by the lack of notice as the
earliest effective date allowed by law was granted and he had
actual knowledge of his right to appeal the rating and did
so. Thus, VA has no outstanding duty to inform the appellant
that any additional information or evidence is needed.
Therefore, the Board may decide the appeal without a remand
for further notification.
Duty to Assist
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue has been obtained. The
Veteran's service medical records have been obtained. His
available post-service treatment records have also been
obtained. The Veteran has had a hearing. He has been
examined for his hearing loss. Significantly, neither the
appellant nor his representative has identified, and the
record does not otherwise indicate, any additional existing
evidence that is necessary for a fair adjudication of the
claims decided here that has not been obtained. Hence, with
regard to the claims decided here, no further notice or
assistance to the appellant is required to fulfill VA's duty
to assist the appellant in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143
(2001); see also Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Service Connection
In order to establish service connection, three elements must
be established. There must be medical evidence of a current
disability; medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38
C.F.R. § 3.303 (2009); see also Hickson v. West, 12 Vet. App.
247, 253 (1999).
Evidence of continuity of symptomatology from the time of
service until the present is required where the chronicity of
a condition manifested during service either has not been
established or might reasonably be questioned. 38 C.F.R.
§ 3.303(b) (2009). Regulations also provide that service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disability was incurred in
service. 38 C.F.R. § 3.303(d) (2009).
An organic disease of the nervous system may be presumed to
have been incurred during active military service if it is
manifest to a degree of 10 percent within the first year
following active service. 38 U.S.C.A. §§ 1101, 1112 (West
2002); 38 C.F.R. §§ 3.307, 3.309 (2009). In this case, there
is no competent evidence of migraines during the year
following the Veteran's active service.
In February 2008, the Veteran gave sworn testimony before a
DRO at the RO. He reported having tests done in service and
treating himself with over the counter medication after
service.
As a lay witness, the Veteran can testify as to what he
experienced. That is, he can competently say that he
experienced headaches during and after service. However, he
does not have the training and experience to diagnose those
headaches as migraine. Moreover, he does not have the
medical expertise to link any current headaches to service.
In this case, there is no competent medical evidence to
support the claim. There is no medical documentation of
headaches in service. Following service, there is no
competent medical evidence confirming a continuity of
symptoms or a current diagnosis.
On the other hand, on examination for separation from
service, the Veteran's head and neurologic system were
reported by a doctor to be normal. That is competent
evidence against the claim. Further, evidence of a prolonged
period without medical complaint and the amount of time that
elapsed since military service, can be considered as evidence
against the claim. Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000). Thus, the more than 30 years between
service and the current claim are evidence against the claim.
The report of the separation examination and the passage of
many years without medical documentation of migraines
outweighs the Veteran's recollection of headaches during and
after service. As the preponderance of the evidence is
against the claim, the benefit of the doubt doctrine is not
applicable and the appeal must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz
v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
Increased Rating
Evaluations of unilateral defective hearing range from
noncompensable to 10 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1000, 2000, 3000 and 4000 cycles per second.
The rating schedule establishes 11 auditory acuity levels
designated from level I for essentially normal acuity through
level XI for profound deafness. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. Part 4, including 38 C.F.R. § 4.85 and Code
6100 (2009). The manifestations of a nonservice-connected
disability may not be used in evaluating a service-connected
disability. 38 C.F.R. § 4.14 (2009). Consequently, if a
claimant has service-connected hearing loss in one ear and
nonservice-connected hearing loss in the other ear, the
hearing in the ear having nonservice-connected loss should be
considered normal for purposes of computing the service-
connected disability rating, unless the claimant is totally
deaf in both ears. See VAOPGCPREC 32-97, August 29, 1997.
Boyer v. West, 11 Vet. App. 474 (1998). The United States
Court of Veterans Appeals (Court) has noted that the
assignment of disability ratings for hearing impairment are
derived at by a mechanical application of the numeric
designations assigned after audiometric evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992).
On the authorized VA audiologic evaluation for rating
purposes, in April 2004, pure tone thresholds, in decibels,
were as follows:
HERTZ
1000
2000
3000
4000
Average
Left
10
20
45
50
31.25
Speech audiometry revealed speech recognition ability of 92
percent in the service-connected ear. These audiologic
results produce a numeric designation of "I" for the left
ear. When this numeric designation is applied to the rating
criteria, the result is a noncompensable rating. 38 C.F.R.
Part 4, including § 4.85, and Code 6100 (2009).
On the authorized VA audiological evaluation for rating
purposes, in April 2008, pure tone thresholds, in decibels,
were as follows:
HERTZ
1000
2000
3000
4000
Average
Left
25
35
60
55
43.75
Speech audiometry revealed speech recognition ability of 88
percent in the service-connected ear. These audiologic
results produce a numeric designation of "II" for the left
ear. When this numeric designation is applied to the rating
criteria, the result is a noncompensable rating. 38 C.F.R.
Part 4, including § 4.85, and Code 6100 (2009).
While the Veteran may feel that his service-connected hearing
loss is disabling to such an extent that it warrants a higher
rating, the objective findings of licensed audiologists using
established techniques and testing equipment are
substantially more probative in determining the extent of the
disability and whether it meets the criteria for a higher
rating. In this case, repeated testing shows that the
service connected left ear hearing loss does not approximate
the criteria for a compensable rating. Once again, the
medical evidence forms a preponderance of evidence against
the claim. As the preponderance of the evidence is against
the claim, the benefit of the doubt doctrine is not
applicable and the appeal must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert; Ortiz.
The Board has considered the issues raised by the United
States Court of Appeals for Veterans Claims (Court) in Hart
v. Mansfield, 21 Vet. App. 505 (2007) and whether staged
ratings should be assigned. We conclude that the left ear
hearing loss disability has not significantly changed and
uniform rating is appropriate in this case. At no time
during the rating period has the disability met the criteria
for a compensable rating.
The potential application of various provisions of Title 38
of the Code of Federal Regulations (2009) have been
considered whether or not they were raised by the veteran as
required by the holding of the Court in Schafrath v.
Derwinski, 1 Vet. App. 589, 593 (1991), including the
provisions of 38 C.F.R. § 3.321(b)(1) (2009). The Board, as
did the RO (see statement of the case dated in January 2006),
finds that the evidence of record does not present such "an
exceptional or unusual disability picture as to render
impractical the application of the regular rating schedule
standards." 38 C.F.R. § 3.321(b)(1) (2009). In this
regard, the Board finds that there has been no showing by the
veteran that this service-connected disability has resulted
in marked interference with employment or necessitated
frequent periods of hospitalization beyond that contemplated
by the rating schedule. In the absence of such factors, the
Board finds that the criteria for submission for assignment
of an extraschedular rating pursuant to 38 C.F.R.
§ 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App.
337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held
that a claim for total disability based on individual
unemployability (TDIU) is part of an increased rating claim
when such claim is raised by the record. The evidence
pertaining to the increased rating claim in this case shows
that the left ear hearing loss is the only disability for
which service connection has been established and it does not
render the Veteran unemployable. That is, the record here
does not raise a TDIU claim.
ORDER
Service connection for migraine headaches is denied.
An initial compensable disability rating for a left ear
hearing loss is denied.
REMAND
What constitutes a hearing loss disability is defined by
regulation. For the purposes of applying the laws
administered by VA, impaired hearing will be considered to be
a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent.
38 C.F.R. § 3.385 (2009).
While the December 1971 separation examination shows a change
from the August 1969 entrance examination, the right ear
audiometric findings did not meet the definition of a hearing
loss for compensation purposes. Similarly, the audiometric
findings on the April 2004 VA examination did not show a
right ear hearing loss for compensation purposes. However,
audiometric testing in April 2008 did show a hearing loss
disability as defined by the regulation. Unfortunately, the
examiner did not express an opinion as to whether the right
sided hearing loss is related to injury in service. VCAA
provides that when there is competent medical evidence of
disability and evidence that indicates a connection to
service (even statements from the claimant) an examination
and medical opinion will be deemed necessary. 38 U.S.C.A.
§ 5103A(d) (West 2002).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be scheduled for
a VA examination to determine the
etiology of his right ear hearing loss.
The claims folder should be made
available to the examiner for review.
Current audiometric testing and any
other tests or studies deemed necessary
should be done. The examiner should
express an opinion on the following,
with a complete explanation:
Is it at least as likely as not that a
current hearing loss disability is the
result of acoustic trauma or other
disease or injury during the Veteran's
active service?
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it
means that the weight of medical
evidence both for and against a
conclusion is so evenly divided that it
is as medically sound to find in favor
of causation as it is to find against
causation.
2. Thereafter, the RO should readjudicate
this claim in light of any evidence added
to the record. If any benefit sought on
appeal remains denied, the appellant and
his representative should be provided a
supplemental statement of the case (SSOC).
An appropriate period of time should be
allowed for response.
Subsequently, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs